DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Drawings
The drawings as submitted on 09/29/2023 have been accepted.
Disposition of Claims
Claims 1-20 are pending in the instant application. Claims 2, 9, and 16 have been cancelled. No claims have been added. Claims 1, 3, 4, 7, 8, 10, 11, 15, 17, and 18 have been amended. The rejection of the pending claims is hereby made final.
Response to Remarks
101
Regarding the rejection of the pending claims under 35 USC 101, the examiner has considered Applicant’s arguments and amendments, but does not find them to be persuasive. If it is asserted that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes, a technical explanation as to how to implement the invention should be present in the specification. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement (see at least MPEP 2106.05(a) Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1316, 120 USPQ2d 1353, 1359 (Fed. Cir. 2016). The improvement can be provided by one or more additional elements. See the discussion of Diamond v. Diehr, 450 U.S. 175, 187 and 191-92, 209 USPQ 1, 10 (1981)) in subsection II, below. In addition, the improvement can be provided by the additional element(s) in combination with the recited judicial exception. See MPEP § 2106.04(d) (discussing Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1303-04, 125 USPQ2d 1282, 1285-87 (Fed. Cir. 2018)). Thus, it is important for examiners to analyze the claim as a whole when determining whether the claim provides an improvement to the functioning of computers or an improvement to other technology or technical field.
Examples that the courts have indicated may show an improvement in computer-functionality:
i. A modification of conventional Internet hyperlink protocol to dynamically produce a dual-source hybrid webpage, DDR Holdings, 773 F.3d at 1258-59, 113 USPQ2d at 1106-07;
ii. Inventive distribution of functionality within a network to filter Internet content, BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341, 1350-51, 119 USPQ2d 1236, 1243 (Fed. Cir. 2016);
iii. A method of rendering a halftone digital image, Research Corp. Techs. v. Microsoft Corp., 627 F.3d 859, 868-69, 97 USPQ2d 1274, 1380 (Fed. Cir. 2010);
iv. A distributed network architecture operating in an unconventional fashion to reduce network congestion while generating networking accounting data records, Amdocs (Israel), Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1300-01, 120 USPQ2d 1527, 1536-37 (Fed. Cir. 2016);
v. A memory system having programmable operational characteristics that are configurable based on the type of processor, which can be used with different types of processors without a tradeoff in processor performance, Visual Memory, LLC v. NVIDIA Corp., 867 F.3d 1253, 1259-60, 123 USPQ2d 1712, 1717 (Fed. Cir. 2017);
vi. Technical details as to how to transmit images over a cellular network or append classification information to digital image data, TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614-15, 118 USPQ2d 1744, 1749-50 (Fed. Cir. 2016) (holding the claims ineligible because they fail to provide requisite technical details necessary to carry out the function);
vii. Particular structure of a server that stores organized digital images, TLI Communications, 823 F.3d at 612, 118 USPQ2d at 1747 (finding the use of a generic server insufficient to add inventive concepts to an abstract idea);
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viii. A particular way of programming or designing software to create menus, Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1241, 120 USPQ2d 1844, 1854 (Fed. Cir. 2016);
ix. A method that generates a security profile that identifies both hostile and potentially hostile operations, and can protect the user against both previously unknown viruses and "obfuscated code," which is an improvement over traditional virus scanning. Finjan Inc. v. Blue Coat Systems, 879 F.3d 1299, 1304, 125 USPQ2d 1282, 1286 (Fed. Cir. 2018);
x. An improved user interface for electronic devices that displays an application summary of unlaunched applications, where the particular data in the summary is selectable by a user to launch the respective application. Core Wireless Licensing S.A.R.L., v. LG Electronics, Inc., 880 F.3d 1356, 1362-63, 125 USPQ2d 1436, 1440-41 (Fed. Cir. 2018);
xi. Specific interface and implementation for navigating complex three-dimensional spreadsheets using techniques unique to computers; Data Engine Techs., LLC v. Google LLC, 906 F.3d 999, 1009, 128 USPQ2d 1381, 1387 (Fed. Cir. 2018); and
xii. A specific method of restricting software operation within a license, Ancora Tech., Inc. v. HTC America, Inc., 908 F.3d 1343, 1345-46, 128 USPQ2d 1565, 1567 (Fed. Cir. 2018).
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It is important to note that in order for a method claim to improve computer functionality, the broadest reasonable interpretation of the claim must be limited to computer implementation. That is, a claim whose entire scope can be performed mentally, cannot be said to improve computer technology. Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 120 USPQ2d 1473 (Fed. Cir. 2016). As currently recited, the pending claims recite modifying a user interface to display routing information for order picking within a warehouse environment, which can be performed mentally, in conjunction with a generic computing device and common computer elements. The examiner suggests amending the language to omit reliance upon humans for any methods steps to be performed by the claimed invention. For at least the reasoning provided above, the rejection of the pending claims under 35 USC 101 is hereby maintained and made final.
Double Patenting
The examiner submits that the rejection of the pending claims in view of Double Patenting is hereby maintained and made final in view of Applicant’s failure to argue what distinguishing factors differentiate the two applications in question.
102
The examiner has considered Applicant’s arguments and amendments pertaining to the rejection of the pending claims under 35 USC 102, in view of the applied prior art of record, but finds said arguments to be moot in view of the new grounds of rejection presented below.
Claim Rejections - 35 USC § 101
35 U.S.C. §101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
9. Claims 1, 3-8, 10-15, and 17-20 are rejected under 35 U.S.C. § 101 because the claimed invention is directed to a judicial exception (i.e., an abstract idea) without “significantly more.” Claim(s) 1-20 are directed to a database and a relational database for inventory management and forecasting, which is considered an abstract idea. Further, the claim(s) as a whole, when examined on a limitation-by-limitation basis and in ordered combination do not include an inventive concept.
Step 1 – Statutory Categories
As indicated in the preamble of the claim, the examiner finds the claim is directed to a process, machine, manufacture or composition of matter.
Step 2A (prongs 1 and 2) - Abstract Idea Analysis
Exemplary claim 1 recites the following abstract concepts that are found to include “abstract idea”:
Limitation 1 – receiving an image of an area captured by a user device;
Limitation 2 – applying a machine-learned model to the image to generate a set of items;
Limitation 3 – generating information about a location of the set of items; and
Limitation 4 – modifying a user interface for a second order based on the determined information about the items.
The Federal Circuit has repeatedly emphasized that “the key question is ‘whether the focus of the claims is on the specific asserted improvement . . . or, instead, on a process that qualifies as an “abstract idea” for which computers are invoked merely as a tool.’” Visual Memory LLC v. Nvidia Corp., No. 2016-2254 (Fed. Cir. Aug. 15, 2017) (referring to Enfish LLC v. Microsoft Corp. et al., Appeal No. 2015-1244 (Fed. Cir. 2016)). “In this regard, [examiners] must articulate with specificity what the claims are directed to.” Thales Visionix Inc. v. U.S., 850 F.3d 1343, 1347 (Fed. Cir. 2017). Moreover, the Federal Circuit has held that “[a]dding one abstract idea . . . to another abstract idea . . . does not render the claim non-abstract.” RecogniCorp, LLC v. Nintendo Co., Ltd., 885 F.3d 1322, 1327 (Fed. Cir. 2017). Importantly, “[w]e [] assume that the techniques claimed are ‘[g]oundbreaking, innovative, or even brilliant,’ but that is not enough for eligibility.” SAP Inc. v. InvestPic, LLC, Appeal No. 2017-2081 (Fed. Cir. 2018) citing Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 *2013).
Furthermore, “[t]he ‘novelty’ of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter.” Diamond v. Diehr, 450 U.S. 175, 188-89 (1981). “The fact that an identifier [or utilization of the underlying abstract idea] can be used to make a process more efficient . . . does not necessarily render an abstract idea less abstract.” Secured Mail Solutions, LLC v. Universal Wilde, Inc., Appeal No. 2016-1728 (Fed. Cir. Oct. 16, 2017). Importantly, the CAFC “ha[s] held that speed and accuracy increases stemming from the ordinary capabilities of a general purpose computer ‘do[] not materially alter the patent eligibility of the claimed subject matter.’” Intellectual Ventures I v. Erie Indemnity, Appeal No. 2017-1147 (Fed. Cir. 2017) citing Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012). However, “some improvements in computer-related technology when appropriately claimed are undoubtedly not abstract, such as chip architecture, an LED display, and the like.” Enfish, 822 F.3d at 1355.
Here, the examiner finds the claims are not directed to “an improvement to computer technology," such as found in Enfish, but to the abstract idea itself.1 Examiners have been instructed to refer to the body of case law precedent in order to identify abstract ideas by way of comparison to concepts already found to be abstract. Accordingly, the examiner refers to the following cases (and their associated judicial descriptor(s)) that relate to concepts similar to the claimed concepts:
Versata2(precedential—ineligible) – abstract idea found to be using organizational and product group hierarchies to determine a price, where this was found to be a method of organizing human activity;
Downing3 (non-precedential—ineligible) – abstract idea found to be the concept of personal management, resource planning, and forecasting including a “resource planning forecast product” that collects and analyzes “non-business or business information relative to the end user,” where this was found to be a method of organizing human activity; and
SAP Inc. v. InvestPic4 (precedential—ineligible) – abstract idea found to be selecting certain information, analyzing it using mathematical techniques, and reporting or displaying the results of the analysis, where this was found to be a certain method of organizing human activity.
As indicated above, the claims are directed to similar concepts.5 Therefore, the claims are found to be directed to abstract idea. Similar to the case law cited above, the examiner finds the abstract idea to include at least the judicial descriptor(s) of: certain methods of organizing human activity.6
Regarding preemption, the examiner notes that “[w]hile preemption may signal ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). “Where a patent’s claims are deemed only to disclose patent ineligible subject matter under the Mayo framework, as they are in this [application], preemption concerns are fully addressed and made moot.” Id.
Step 2B - Significantly More Analysis
“[A]fter determining that a claim is directed to a judicial exception, ‘we then ask, [w]hat else is there in the claims before us?’” MPEP 2106.05 (emphasis in MPEP) citing Mayo, 566 U.S. at 78. “What is needed is an inventive concept in the non-abstract application realm.” SAP Inc. v. InvestPic, LLV, Appeal No. 2017-2081 (Fed. Cir. 2018). For step two, the examiner must “determine whether the claims do significantly more than simply describe [the] abstract method” and thus transform the abstract idea into patent-eligible subject matter. Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014).
A primary consideration when determining whether a claim recites “significantly more” than abstract idea is whether the additional element(s) are well-understood, routine, conventional activities previously known to the industry. See MPEP 2106.05(d). “If the additional element (or combination of elements) is a specific limitation other than what is well-understood, routine and conventional in the field, for instance because it is an unconventional step that confines the claim to a particular useful application of the judicial exception, then this consideration favors eligibility. If, however, the additional element (or combination of elements) is no more than well-understood, routine, conventional activities previously known to the industry, which is recited at a high level of generality, then this consideration does not favor eligibility.” Id.
The Federal Circuit has held that “[w]hether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination.” Bahr, Robert (April 19, 2018). Changes in Examination Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.) citing Berkheimer at 1369. “As set forth in MPEP 2106.05(d)(I), an examiner should conclude that an element (or combination of elements) represents well-understood, routine, conventional activity only when the examiner can readily conclude that the element(s) is widely prevalent or in common use in the relevant industry. This memo[] clarifies that such a conclusion must be based upon a factual determination that is supported as discussed in section III [of the memo].” Berkheimer Memo at 3 (emphasis in memo).
Generally, “[i]f a patent uses generic computer components to implement an invention, it fails to recite an inventive concept under Alice step two.” West View Research v. Audi, CAFC Appeal Nos. 2016-1947-51 (Fed. Cir. 04/19/2017) citing Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324–25 (Fed. Cir. 2016) (explaining that “generic computer components such as an ‘interface,’ ‘network,’ and ‘database’ . . . do not satisfy the inventive concept requirement”; but see Bascom (finding that an inventive concept may be found in the non-conventional and non-generic arrangement of the generic computer components, i.e., the installation of a filtering tool at a specific location, remote from the end-users, with customizable filtering features specific to each end user).
In accordance with the above guidance, the examiner has searched the claim(s) to determine whether there are any “additional elements” in the claims that constitute “inventive concept,” thereby rendering the claims eligible for patenting even if they are directed to an abstract idea. Alice, 134 S. Ct. 2347 (2014). Those “additional features” must be more than “well understood, routine, conventional activity.” See Alice. To note, “under the Mayo/Alice framework, a claim directed to a newly discovered . . . abstract idea[] cannot rely on the novelty of that discovery for the inventive concept necessary for patent eligibility.” Genetic Techs. Ltd v. Merial LLC, 818 F.3d 1369, 1376 (Fed. Cir. 2016); Diamond v. Diehr, 450 U.S. 175, 188-89 (1981).
As an example, the Federal Circuit has indicated that “inventive concept” can be found where the claims indicate the technological steps that are undertaken to overcome the stated problem(s) identified in Applicant’s originally-filed Specification. See Trading Techs. Inc. v. CQG, Inc., No. 2016-1616 (Fed. Cir. 2017); but see IV v. Erie Indemnity, No. 2016-1128 (Fed. Cir. March 7, 2017)(“The claims are not focused on how usage of the XML tags alters the database in a way that leads to an improvement in technology of computer databases, as in Enfish.”)(emphasis in original) and IV. v. Capital One, Nos. 2016-1077 (Fed. Cir. March 7, 2017)(“Indeed, the claim language here provides only a result-oriented solution, with insufficient detail for how a computer accomplishes it. Our law demands more. See Elec. Power Grp., 830 F.3d 1356 (Fed. Cir. 2016) (cautioning against claims ‘so result focused, so functional, as to effectively cover any solution to an identified problem.’)”). Furthermore, “[a]bstraction is avoided or overcome when a proposed new application or computer-implemented function is not simply the generalized use of a computer as a tool to conduct a known or obvious process, but instead is an improvement to the capability of the system as a whole.” Trading Techs. Int’l, Inc. v. CQG, Inc., No. 2016-1616 (Fed. Cir. 2017) (emphasis added).
In the search for inventive concept, the Berkheimer Memo describes “an additional element (or combination of elements) is not well-understood, routine or conventional unless the examiner finds, and expressly supports a rejection in writing with, one or more of the following:
1. A citation to an express statement in the specification or to a statement made by an applicant during prosecution that demonstrates the well-understood, routine, conventional nature of the additional element(s).
2. A citation to one or more of the court decisions discussed in the MPEP as noting the well-understood, routine, conventional nature of the additional element(s).
3. A citation to a publication that demonstrates the well-understood, routine, conventional nature of the additional element(s).
4. A statement that the examiner is taking official notice of the well-understood, routine, conventional nature of the additional element(s).
See Berkheimer Memo at 3-4.
Accordingly, the examiner refers to the following generically-recited computer elements with their associated functions (and associated factual finding(s)), which are considered, individually and in combination, to be routine, conventional, and well-understood:
Additional Element 1 – a processor and a computer readable medium
Additional Element 2 – a user device
Additional Element 3 – another user device.
In sum, the examiner finds that the claims "are directed to the use of conventional or generic technology in a nascent but well-known environment, without any claim that the invention reflects an inventive solution to any problem presented by combining the two.” In re TLI Communications LLC, No. 2015-1372 (May 17, 2016). Similar to the claims in SAP v. InvestPic, “[t]he claims here are ineligible because their innovation is an innovation in ineligible subject matter.” Appeal No. 2017-2081 (Fed. Cir. 2018). In other words, “the advance lies entirely in the realm of abstract ideas, with no plausibly alleged innovation in the non-abstract application realm.” Id. Accordingly, when considered individually and in ordered combination, the examiner finds the claims to be directed to in-eligible subject matter. Claims 3-7 suffer from similar deficiencies as the claim from which they depend, and therefore fails to remedy the deficiency of the independent claims they depend therefrom.
In addition, the examiner has fully considered each of similarly recited independent claims 8 and 15, and the dependent claims that depend therefrom. Unless otherwise noted below, the dependent claims are directed to the identified abstract idea above. Similar to the independent claim(s) above, the examiner refers to generically-recited computer elements with their associated functions (and associated factual finding(s)), which are considered, individually and in combination, to be routine, conventional, and well-understood, and therefore fails to remedy the deficiency of the independent claims they depend therefrom.
For the reasons stated, the examiner does not find the claims to recite eligible subject matter under 35 U.S.C. § 101. Appropriate correction and/or clarification is required.
Double Patenting
The non-statutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A non-statutory double patenting rejection is appropriate where the claims at issue are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a non-statutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-20 are provisionally rejected on the ground of non-statutory double patenting as being unpatentable over claims 1-20 of co-pending Application No. 18/243600. Although the claims at issue are not identical, they are not patentably distinct from each other because both applications are directed to systems and methods of inventory management and routing of inventory based on age information associated with said items.
This is a provisional non-statutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 3-8, 10-15, and 17-20 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Goossens et al (US 2023/0260378).
Regarding claim 1, the prior art discloses a method, performed at a computer system comprising a processor and a computer-readable medium, comprising: receiving an image of an area of a physical warehouse, the image captured by a user device operated by a picker fulfilling a first order (see at least paragraph [0038] to Goossens et al); applying a machine-learned model to the image to generate a set of items that are depicted in the image of the area of the physical warehouse (see at least paragraph [0038] to Goossens et al); updating information about a location of the at least one of the set of items in the physical warehouse based on the generated set of items in the image of the area of the physical warehouse and a location of the user device operated by the picker when the image was captured (see at least paragraph [0046] to Goossens et al); selecting a second order including the at least one of the set of items associated with updated location information, the second order associated with a second user device operated by a second picker, wherein a user interface presented at the second user device includes a first route through the physical warehouse (see at least paragraph [0077] to Goossens et al); and modifying a user interface for a second order based on the updated information about the items, wherein the modifying comprises causing the user interface to display a second route through the physical warehouse, the second route determined based on the updated information about the location of the at least one of the set of items in the physical warehouse [0040] to Goossens et al).
Regarding claim 3, the prior art discloses the method of claim 1, further comprising: generating a proximity score for the at least one of the at least one of the set of items relative to one or more items in the second order relative to the determined information about the location of the set of items; and generating a ranking of at least one of the set of items for presentation to a user based on the proximity score; wherein modifying the user interface includes presenting the ranking based on the proximity score (see at least paragraph [0040] to Goossens et al).
Regarding claim 4, the prior art discloses the method of claim 1, wherein the updated information about the location of the set of items is an alternate location of the items (see at least paragraph [0025] to Goossens et al).
Regarding claim 5, the prior art discloses the method of claim 1, further comprising: determining that an item is available for inclusion in the second order, wherein the determining is based on determining a set of items that are depicted in the image of the area of the physical warehouse (see at least paragraph [0025] to Goossens et al).
Regarding claim 6, the prior art discloses the method of claim 1, further comprising: assigning a task for a picker of the second order to determine supplemental item information about one or more other items at the location in the warehouse; wherein modifying the user interface comprises displaying the task to the picker of the second order while the picker is in the physical warehouse (see at least paragraph [0038] to Goossens et al, wherein The instructions may include various types of tasks for the autonomous vehicle 106 and/or the picker 112 to perform).
Regarding claim 7, the prior art discloses the method of claim 1, wherein the machine-learned model is trained by, repeatedly: inputting a training image to the machine-learned model, wherein the machine- learned model outputs a probability that a specific item is depicted in the training image; comparing the probability to a label that indicates whether the specific item is actually depicted in the training image; and updating the machine-learned model based on the comparing (see at least paragraph [0082] to Goossens et al, wherein object recognition may be performed to recognize a product and determine whether the product matches to an expected product image. As discussed herein, the processor (230 in FIG. 2B) may support object recognition capabilities and/or be capable of executing the image processing operations for the media data received from the camera 280. Additionally or alternatively, the orchestrator server (122 in FIG. 1) may receive media data (raw data, compressed data) from the 280 and perform object recognition and exception detection for the products entering the containers 228. The image processing operations may confirm whether the picker 224 correctly picked the product that the picker 224 placed into the container 228).
Claims 8, 10-15, and 17-20 each contain recitations substantially similar to those addressed above and, therefore, are likewise rejected.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
The examiner has considered all references listed on the Notice of References Cited, PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TALIA F CRAWLEY whose telephone number is (571)270-5397. The examiner can normally be reached on Monday thru Thursday; 8:30 AM-4:30 PM EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Fahd A Obeid can be reached on 571-270-3324. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/TALIA F CRAWLEY/Primary Examiner, Art Unit 3627
1 See Electric Power Group, LLC. V. Alstom, case no. 2015-1778 (Fed. Cir. August 1, 2016) (“The present case is different: the focus of the claims is not on such an improvement in computers as tools, but on certain independent abstract ideas that use computers as tools.”).
2 793 F.3d 1306 (Fed. Cir. 2015)(The court also stated that “[u]sing organizational and product group hierarchies to determine a price is an abstract idea that has no particular concrete or tangible form or application. It is a building block, a basic conceptual framework for organizing information.”).
3 Appeal No 2018-1795 (Fed. Cir. 2018).
4 Appeal No. 2017-2081 (Fed. Cir. 2018).
5 “[The examiner] need not define the outer limits of ‘abstract idea,’ or at this stage exclude the possibility that any particular inventive means are to be found somewhere in the claims, to conclude that these claims focus on an abstract idea—and hence require stage two analysis under § 101.” Electric Power Group, LLC. V. Alstom, case no. 2015-1778 (Fed. Cir. August 1, 2016).
6 As stated in the July 2015 Update: Subject Matter Eligibility, “These associations define the judicial descriptors in a manner that stays within the confines of the judicial precedent, with the understanding that these associations are not mutually exclusive, i.e., some concepts may be associated with more than one judicial descriptor.”